This post focuses on the family separation policy’s illegality under international law as a violation of the rights of children and the right to family. The post explains how family separation violates several international treaties and conventions that the U.S. must comply with. It also examines what is being done by advocates and international bodies to condemn and bring an end to this appalling practice. Finally, it argues that although the policy of family separation is clearly illegal under international law, the U.S. has yet to ratify key treaties and provisions, and enact federal law that would create enforcement mechanisms for its legal obligations and give individuals a cause for action for rights violations in U.S. courts.

Convention on the Rights of the Child (CRC)

The 1989 Convention on the Rights of the Child (“Convention” or “CRC”) mandates that states employ a “best interest of the child” standard in actions that effect children. Several provisions within the Convention specifically address the rights of children to be with their parents and family including Article 7 (the right to know and be cared for by one’s parent) and Article 8 (the right to family relations without interference).

Article 9 of the Convention specifically bans separation of parents from children except in limited circumstances (when it is necessary to ensure the best interest of the child). Under the Convention:

State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence

Under Article 9 of the CRC, when states do separate children from their parents they must allow children to “maintain personal relations and direct contact with both parents on a regular basis…” and must also keep children informed of their parents’ whereabouts.

The U.S. signed the CRC in February 1995 but has never ratified the Convention. Currently 196 states are party to the Convention and the United States is the only U.N. state that is not party. Nonetheless, under Article 18 of the Vienna Convention on the Law of Treaties (VCLT) as a signatory to the CRC the U.S. must “refrain from acts which would defeat the object and purpose of [the] treaty.” Furthermore, as a treaty that has been signed by every country in the world, at least some provisions within the Convention could be found to have reached the status of customary international law, and therefore also be binding on the United States.

The policy of family separation clearly and directly violates the articles of the CRC mentioned above and the object and purpose of the Convention. The U.S. is not separating children from their parents in their best interest but as a deterrent and punishment for their parents’ unauthorized entry into the United States. The policy will have devastating consequences for the children and parents affected. The American Psychological Association (APA) has issued a statement that the family separation policy “is not only needless and cruel, it threatens the mental and physical health of both the children and their caregivers.”

The American Declaration on the Rights and Duties of Man and the American Convention on Human Rights

The American Declaration on the Rights and Duties of Man (“American Declaration”), to which the U.S. is party, contains Article V (the right to private and family life), Article VI (the right to establish a family) and Article VII (the right to special protection and aid for children) which the practice of family separation violates.

The American Convention on Human Rights (“American Convention”) includes Article 7 (right to personal liberty), Article 11 (right to privacy), Article 17 (right to family) and Article 19 (rights of the child) which the practice of family separation also violates. Article 11 is most relevant and states “[n]o one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.” Like the CRC, the U.S. has signed but not ratified the American Convention and should therefore refrain from acts that violate its object and purpose.

Although the U.S. has not ratified the American Convention the Inter-American Commission on Human Rights still has limited jurisdiction over the United States. Because the U.S. is a member of the Organization of American States and is party to the American Declaration individuals can bring complaints to the Commission regarding violations of the American Declaration.

Civil and human rights groups recently filed a complaint on behalf of several individuals against the Trump administration’s family separation policy with the Commission alleging violations to family life and to the rights of the child. The Inter-American human rights system is a two-tiered system where cases are first submitted to the Inter-American Commission on Human Rights and can then be forwarded to the Inter-American Court of Human Rights in the case of non-compliance. Because the U.S. has not accepted the jurisdiction of the Court, however, cases against the U.S. cannot be sent from the Commission to the Court, which issues binding decisions.

International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR), unlike the international instruments mentioned above, has been signed and ratified by the United States. Under Article 17 of the ICCPR “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Article 23 states that “family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Although the U.S. is bound by the articles of the ICCPR, they are currently difficult to enforce. Under U.S. law there is no cause of action for litigants alleging violations of its provisions in U.S. courts because the ICCPR has not been incorporated directly into federal law by Congress.

Furthermore, the U.S. has not adopted the protocol that would give the U.N. Human Rights Committee authority to receive complaints against the U.S. for violations of the ICCPR. The office for the United Nations High Commissioner for Human Rights, however, recently called on the U.S. to stop the practice of family separation stating the practice runs counter to human rights principles including the right to family life and the rights of the child, included in the ICCPR.

Because the right to seek asylum and the definition of refugee, which stems from an international treaty, is directly incorporated into U.S. law it creates a legal cause for action and is the only violated international law mentioned in the domestic ACLU law suit.

Finally, the prosecution of asylum seekers for illegal entry (which the administration argues makes family separation necessary) clearly violates U.S. obligations under Article 31 of the Refugee Convention which states:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Conclusion

Analysis of Trump administration’s family separation policy demonstrates that although the practice is clearly illegal under several international treaties that the U.S. must comply with, enforcement mechanisms are lacking. The lack of enforcement mechanisms needs to be remedied especially in relation to the rights of children, a vulnerable group. The U.S. desperately needs to ratify the Convention on the Rights of the Child and codify its provisions within federal law to ensure that the rights of children (especially noncitizen children) are not violated by U.S. immigration policy.

One year ago this month, Efrain Rios Montt, leader of Guatemala from 1982-1983, was found guilty of genocide in a Guatemalan court for crimes committed during the country’s bloody civil war. Only ten days later, however, the verdict was overturned and the case was set to be heard again in April 2014. While many in the international community initially applauded Guatemala’s justice system for being able to convict a powerful figure of such a serious crime, sentiment quickly changed as the verdict was vacated. Since then, the retrial has been delayed even further, not expected to be heard now until 2015 at the earliest. Also, the Attorney General who brought the charges against Rios Montt, Claudia Paz y Paz, was forced to leave her position before it was set to expire. The initial success and then failure of Guatemalan courts to secure a conviction against Rios Montt raises questions about the ability of domestic courts to handle the most serious international crimes, including genocide.

In an article recently published in the Brooklyn Journal of International Law entitled, Should Domestic Courts Prosecute Genocide? Examining the Trial of Efrain Rios Montt, I assess the benefits and drawbacks of domestically prosecuting the crime of genocide, using Rios Montt’s Guatemalan trial as a case study. I focus on four factors: jurisdiction, defendants’ rights, the goals of criminal justice and the goals of transitional justice. I conclude that a domestic genocide trial better meets jurisdiction requirements and the goals of transitional justice, but may do so at the expense of the traditional goals of justice (in this case, a final condemning guilty verdict and the incarceration of Rios Montt).

The continuing delays in Guatemala demonstrate the flaws of domestic genocide trials. Because Rios Montt still has strong political allies in the country (he was a member of Congress only two years ago), he as been able to influence the domestic justice system, and stall a final verdict against him. At the same time, the trial against him has benefitted Guatemalan society by allowing victims to testify in front of their community, bringing about a national human rights dialogue about past abuses, and strengthening domestic judicial institutions. The final version of the article can be downloaded here (SSRN).

In an essay published this week in UCLA Law Review Discourse entitled, “A Legal ‘Red Line’? Syria and the Use of Chemical Weapons in Civil Conflict,” we analyze the prohibition on the use of chemical weapons under international law. We find that while chemical weapons are firmly banned in international armed conflict, the prohibition is less clear in noninternational armed conflict. We also argue that the use of chemical weapons in Syria does not, by itself, cross a legal “red line” that would justify military intervention. The situation in Syria highlights the legal complexities of chemical weapons use in a civil conflict and the need for reform. States should ratify a 2010 amendment to the Rome Statute that would make chemical weapons use illegal in all conflicts and also allow for ICC prosecution of individuals who carry out chemical weapons attacks in civil war. The international community should also remain committed to the prevention of international crimes and resolution to the ongoing humanitarian crisis in Syria.